'El Chapo' Guzmán's extradition might get blocked by a Mexican judge, but the government may have a way around it

Joaquín "El Chapo" Guzmán's appeals against his extradition
went before a judge in Mexico City on September
26, but that judge may takes weeks to rule, and the appeals
process that is sure to play out after his decision is sure to
drag on for weeks if not months.

At the end of all that, a Mexican court may rule against the
government's decision earlier this year to accede to extradition
requests from two US District Courts, a possibility that can't be
discounted, especially since Guzmán's legal team has argued that the kingpin was mistreated
by state authorities.

But the disapproval of the Mexican judicial system would not be
the death knell of the Peña Nieto government's efforts to rid
itself, and Mexico, of Guzmán.

"As a technical matter, the Mexican executive [branch] is not at
all dependent on the Mexican judicial system to approve of
extradition," Peter Vincent, a former legal adviser at the
US Department of Homeland Security, told Business Insider. "It in
fact has unilateral authority ... to ultimately approve
of extradition, because extradition is after all a diplomatic
matter, best handled by the executive branch."

There is precedent for the Mexican government to overrule a
decision by a court in order to carry out a high-profile
extradition request.

Alberto Benjamin Arellano Felix, reputedly the leader of the powerful Tijuana
cartel at the time, was captured by Mexican authorities
in March 2002. Arellano Felix was sentenced to 22 years in jail
in Mexico, but efforts to extradite him to the US stalled.

Francisco
Javier Arellano Felix, left, Benjamin Arellano, and his brother
Ramon Arellano, right, are seen in these undated photos released
in 2001. The three men were the heads of the Tijuana,
Mexico-based Arellano Felix drug cartel. The Arellano Felix
cartel had a reputation as Mexico's most violent drug
cartel.AP Photos

The US government's extradition request was held for several months because of translation
delays and other administrative issues. This was compounded by
the change of government in Mexico at the end of 2006, when
Felipe Calderon took office.

The process hit another roadblock in May 2007, when a Mexican
judge ruled against Arellano Felix's extradition saying that he
would be tried for charges he had already faced in Mexico.

But in 2008, the Mexican government dismissed this objection, paving the way for
Arellano Felix to be sent to the US. At the time, the
Mexican attorney general's office said Arellano
Felix had been tried for drug trafficking and other offenses
committed prior to 1997, and that he would face trafficking
charges for years after that in the US.

Moreover, according to USA Today, he was wanted in the
US for for money laundering, for which he wasn't tried in
Mexico.

That judge's opinion was not binding on the government, though it was
required to consider it.

"The ultimate decision on whether to extradite an individual
rests exclusively with the Secretary of Foreign Affairs [SRE],
which, of course, is part of the executive branch, which is
controlled by the president," Vincent told Business Insider.
"That is, the SRE is not required to follow the judge’s
recommendation."

Arellano Felix's subsequent appeals were denied, and Mexican
authorities surrendered him to US officials in San Diego in April
2011. He took a plea deal and was sentenced to 25 years in April 2012. The
judge elected to credit him for the time he spent in
US custody, but upon the completion of his US sentence, around
the time he is 80, he will have to serve the remainder of his 22-year
sentence in Mexico.

Mexico's reversal on Arellano Felix's extradition was part of a
relaxation of the country's extradition policies that took place
in the mid-2000s, as the Vicente Fox and Calderon governments'
ramped up efforts to fight cartels.

Mexico had previously refused to extradite high-profile drug
bosses, as they could have faced the death penalty or life
imprisonment — sentences Mexico's legal system does not
issue — in a US court.

The US eased the charges against Arellano
Felix in 2003 to avoid those sentences, but Mexico later
installed a legal workaround.

As Vincent noted:

"In 2005, the Mexican Supreme Court struck down a constitutional
provision that had banned life imprisonment with no chance of
parole sentences. As such, Mexico can and had extradited Mexican
citizens to the United States even when they would face a life
sentence. They will not, however, extradite if the death penalty
is being considered. The United States makes 'diplomatic
assurances' that it will neither seek not impose the death
penalty in those cases."

Peter
Vincent, who was a senior official and legal adviser to the
Justice Department and Homeland Security during the search for
"El Chapo" Guzman.CBS News/60
Minutes

But for Guzmán — a capo almost without rival who faces a bevy of
charges in the US (and whose cartel won a bloody war with the Arellano Felix
cartel in the 1990s and 2000s) — the Mexican government
may not need to take executive action.

"What the Mexican authorities ... are sensitive to is allegations
that the Mexican executive is essentially denying ... a Mexican
citizen of his constitutional rights, and [they are] not likely
to countermand in this ... very high-profile instance any
decision by the Mexican judiciary not to extradite," Vincent told
Business Insider.

"All indications are, however, that the Mexican judicial system
ultimately will approve or allow the extradition of Mr. Guzmán,"
he stressed.